The American Civil Liberties Union filed a lawsuit on behalf of five Muslims allegedly denied American citizenship because of a secretive policy a Homeland Security Department’s immigration agency operates. The program grants the government broad discretion to designate those applying for citizenship as “national security concerns.”

According to the ACLU’s filed complaint [PDF], the United States Citizenship and Immigration Service (USCIS) has engaged in the “unlawful delay and denial of plaintiffs’ applications for citizenship and lawful permanent residence [LPR] under a secretive policy” known as the Controlled Application Review and Resolution Program (CAARP). The policy has allegedly barred USCIS from upgrading plaintiffs’ immigration status and violated the Immigration and Nationality Act.

USCIS has declined to voluntarily make public information related to its policy of designating people as “national security concerns.” In fact, if a person is designated a “national security concern”—and this can happen because of “innocuous activity and associations, and characteristics such as national origin,” there is no notice provided to applicants that they have been taken off an “adjudication track” and will not be approved.

Between 2008 and 2012, more than 19,000 people, who were from Muslim-majority countries or regions were subjected to CAARP.

Plaintiffs include two Palestinian nationals, two Iranian nationals and a Somali national. In each of their cases, there is evidence that FBI interest in them had something to do with their indefinite delays in naturalization.

Ahmad Muhanna and Reem Muhanna, who are husband and wife, are both nationals from Palestine. Ahmad moved to the US in 1985. Reem moved to the US in 1988. They married in 1988 and have lived in Richardson, Texas, since 1995. They became LPRs in 2002 and applied for naturalization in 2007.

The ACLU’s complaint indicates, “Mr. and Ms. Muhanna are Muslim and active participants in their religious community. Every year they donate roughly three percent of their annual income to humanitarian causes in accordance with the teachings of Islam.”

In August 2009, “years after” USCIS “canceled two appointments for their interviews on their naturalization applications,” “FBI agents made approximately six separate visits to the Muhannas’ home and to Mr. Muhanna’s work place.” The Muhannas instructed agents to “speak with their attorney, who in turn requested the agents submit written questions for the Muhannas to answer. The FBI agents never provided the questions,” according to the ACLU.

Writs of mandamus were filed in federal court to force USCIS to conduct interviews. In October 2011, USCIS interviewed the Muhannas. They “volunteered information about their past contacts with members of the Holy Land Foundation (HLF).” However, on February 4, 2012, they had their applications denied for allegedly lacking “good moral character” after allegedly “testifying falsely about their alleged affiliation with the HLF, even though they both voluntarily disclosed the totality of their interactions with the organization.”

The HLF was the largest Muslim charity in the US. The federal government, as Human Rights Watch recently highlighted in a report, began to investigate the charity in 1993 after US citizen Muhammad Salah was tortured and coerced by Israeli interrogators into providing information that HLF provided support to Hamas. The FBI launched an investigation into HLF and other Muslim charities and the Justice Department eventually brought charges of material support for terrorism against HLF members. They were convicted during a second trial and are now in prison.

Neither was ever charged with directly funding terrorist organizations or any terrorist attacks. What the prosecution argued was HLF provided money to Palestinian charities and those charities had been involved in Hamas’ social programs, which were supposed to win support from the Palestinian people and “that enabled Hamas’ military wing to carry out terrorist attacks.” To continue to criminalize that, USCIS denied their naturalization application.

The ACLU connects the USCIS’ decision to designate individuals’ as “national security concerns” to the Terrorist Screening Database (TSDB) by noting that CAARP considers applicants “known or suspected terrorists” if their name appears in the database.

The lawsuit may be the first lawsuit to make use of a previously kept secret “watchlisting guidance” that was published by The Intercept on July 23. It uses the “guidance” to point out the flaw in relying on TSDB information to determine if a naturalization applicant is a “national security concern.”

…The government’s recently disclosed criteria for watchlist nominations, known as the Watchlisting Guidance, permits non-U.S. citizens, including LPRs, to be listed in the TSDB even where the government does not have “reasonable suspicion” of involvement with terrorist activity. The Guidance permits the watchlisting of non-citizens and LPRs simply for being associated with someone else who has been watchlisted, even when any involvement with that person’s purportedly suspicious activity is unknown. The Guidance also states explicitly that non-citizens and LPRs may be watchlisted based on fragmentary or uncorroborated information, or information of “suspected reliability.” These extremely loose standards significantly increase the likelihood that the TSDB contains information on individuals who are neither known nor appropriately suspected terrorists…[emphasis added]

The Terrorist Screening Center, which maintains the TSDB, is also noted to have “failed to ensure that innocent individuals are not watchlisted.”

“In 2013 alone, the watchlisting community nominated 468,749 individuals to the TSDB, and the TSC
rejected only approximately one percent of those nominations. In 2009, the Government Accountability Office found that 35 percent of the nominations to the TSDB were outdated, and that tens of thousands of names had been placed on the list without an adequate factual basis,” according to the ACLU’s complaint.

CARRP explicitly states that the “facts of the case do not need to satisfy the legal standard used in determining admissibility or removability” under the Immigration and Nationality Act. USCIS officers are also directed to “look at evidence of charitable donations to organization later designated as financiers of terrorism by the US Treasury Department and to construe such donations as evidence of a ‘national security concern,’ even if an individual had made such donations without any knowledge or reasonable way of knowing that the organization was allegedly engaged” in financing terrorism.

This is why the Muhannas probably have found themselves on the Selectee List, where their boarding passes are marked “SSSS.” It likely explains why Muhanna cannot check in to flights online, and why, on one trip, US government officials “prevented Mr. and Ms. Muhanna from boarding a flight from Canada to the US, stating that they needed to check with officials in Washington, DC, before they could allow” Ahmed Muhanna to board their flight.

In recent months, the ACLU has filed a lawsuit challenging the “Suspicious Activity Reporting” program. It has also previously challenged the No Fly List, the NYPD’s surveillance of Muslim communities and the FBI’s mapping of Muslim communities with racial and ethnic data, as well as the agency’s infiltration of community mosques.

The lawsuit against this secretive policy employed by USCIS against immigrants challenges yet another part of the network of policies, procedures and systems that have developed in the “War on Terrorism” and grant authorities broad discretion. There is little to protect individuals from the anti-Muslim racism deeply entrenched in government agencies, and lawsuits like this one are one of the few ways change can be forced.